Friday, July 10, 2009

We wonder what Supreme Court nominee Sonia Sotomayor has to hide. Her confirmation hearing starts Monday, but the White House refuses to turn over boxes of documents for review about her past. Republican senators requested board meeting minutes of the Puerto Rican Legal Defense and Education Fund, where Ms. Sotomayor served on the board of directors from 1980 to 1992. White House Counsel Greg Craig contends that all documents deemed “responsive” already were sent to the Senate Judiciary Committee.

Contrary to White House dodging, these board meetings may be important in evaluating Ms. Sotomayor’s legal and policy reasoning because the Puerto Rican Legal Defense and Education Fund was involved in a wide range of controversial legal cases. For instance, the fund fought to abolish the death penalty. It pushed discrimination cases very similar to the New Haven firefighter case in which Ms. Sotomayor’s quota reasoning was unanimously quashed by the Supreme Court.

The organization publicly defended members of a violent Puerto Rican terrorist group, Fuerzas Armadas de Liberacion Nacional, in 1990. Reuben Franco, then the fund’s president, compared the FALN — which was classified as a terrorist group by the FBI — to “fighters for freedom and justice” and said that they were similar to “Nelson Mandela, who himself advocated bearing arms.”

The position of Judge Sotomayor’s supporters is that even though she chaired the litigation committee of the fund’s board of directors, there is no evidence that she had any role in the group’s decision to participate in lawsuits or in formulating or drafting any of its legal arguments. According to Sen. Patrick Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, the material is irrelevant because Republicans will oppose any Obama nominee “even if the president had nominated Moses.”

During a press briefing last week, White House spokesman Robert Gibbs dismissed the request for documents. “How she’d be as a judge are the 17 years of legal opinions that she has written and that she herself has worked on - not a box or boxes of documents that she didn’t write, review or approve,” he said.

The case isn’t so open and shut. Given that Ms. Sotomayor was chairman of the fund’s litigation committee, it would be odd if she didn’t offer or weren’t asked for legal advice. There’s no way to find out if the documents aren’t released.

Judge Sotomayor’s belief that judges should make policy from the bench makes her past statements and affiliations important. At Duke University in February 2005, Judge Sotomayor said, “All of the Legal Defense Funds out there — they’re looking for people [for the Supreme Court] with Court of Appeals experience. Because it is — Court of Appeals is where policy is made.” We suspect Democrats are afraid the unreleased documents will reveal more sexist, racialist reasoning that could stir up opposition to her nomination. That’s why they are suppressing them.

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